Friday, January 11, 2019 1:00 am

Legislator gets reply on suit by firefighter

Attorney general explains how law sees 'resignation'

MATTHEW LEBLANC | The Journal Gazette

A state lawmaker and Indiana Attorney General Curtis Hill have weighed in on a case involving a former high-ranking Fort Wayne Fire Department officer who resigned his position amid alleged racial discrimination.

Elbert Starks, who is black, sued the city Dec. 13 in Allen Superior Court, writing in court documents he “was subjected to racially hostile comments from co-workers which created a hostile work environment.” The case was transferred last week to U.S. District Court in Fort Wayne, records show.

In the lawsuit, Starks claims he reported the comments to officials including Fire Chief Eric Lahey and was transferred to another fire station. A fire captain at the time, Starks resigned his post and accepted a demotion to escape the alleged abuse, according to the lawsuit.

He resigned from the department Oct. 3 as an assistant chief after filing complaints with the Equal Employment Opportunity Commission, a federal agency that administers and enforces civil rights laws, and the city's Metropolitan Human Relations Commission.

Rep. Martin Carbaugh, R-Fort Wayne, later sought clarification from the attorney general regarding the word “resignation” under state law.

At issue was whether a resignation of rank is treated the same as a resignation of office under state statute.

Starks at some point sent an email to Lahey stating, “(he) would like to return as a private immediately,” according to an opinion issued Dec. 20 by Hill. Later, the fire captain changed his mind and tried to take back the resignation.

“The chief treated the firefighter's email as a request for reassignment,” Hill's opinion states. “The firefighter on the other hand considered his email to have been a formal resignation.”

That led to other questions, such as who had the authority to consider Stark's request to reconsider the request. Assignments for duty are handled by the chief, Hill wrote, while the department's Merit Commission has jurisdiction over reconsiderations of formal resignations.

The opinion does not name Starks but references news coverage of his case.

The commission ruled in June that Starks wouldn't be reinstated as captain.

Hill ruled that a resignation differs from a resignation of office under state law. A resignation “is a voluntary and unconditional termination of employment that creates a vacancy in an office,” he wrote.

A resignation in rank equates to a voluntary demotion, the attorney general ruled.

“By its nature, a resignation in rank is conditional on continued employment and does not create a vacancy,” the opinion stated. “Resignations in rank, therefore, are not the legal equivalent of a resignation as that term is used in (state law).”

Carbaugh could not be reached for comment Thursday.

It is not clear how or whether the legal clarification might affect Starks' lawsuit, which seeks damages including back pay, front pay, bonuses, retirement compensation and medical costs.

The hostile comments started in 2017, according to the lawsuit. No hearings are scheduled in the case, according to court records.